Appoint special prosecutor for 'porngate'

By Ronald D. Castille

Pennsylvanians have a right to accurate answers in the swirling public controversy known as "porngate," involving the Office of the Attorney General, the state Judicial Conduct Board, and the state Supreme Court.

This controversy, which has led to the early retirement of one Supreme Court justice, has managed to seriously stain the reputations and efficacy of these important governmental institutions that have a direct impact on the delivery of justice in Pennsylvania. The present situation has unfortunately devolved into a "yes, you did - no, I didn't" argument.

I would begin the next sentence with "As the record now stands," but Attorney General Kathleen Kane and her spokesman's bumbling responses have managed to cloud the record with a slow-drip release of the emails at issue and the various statements, counterstatements, and corrections issued by the office. The conduct board's responses have only added to the confusion, with its counsel seeking refuge behind a shield of confidentiality when the counsel sees fit. Can anyone on this record answer the questions of who sent what to whom, and when, and how it was done?

An independent prosecutor with full investigatory authority should be appointed by the Supreme Court to decisively answer these questions for the public's sake and for the reputations of these three governmental bodies.

When the attorney general initially brought a sampling of sexually explicit emails to the public's attention and implicated judicial officials as part of the emails, as then chief justice I officially requested from Kane "any" emails and pornographic materials relative to "any judicial officer" that were in the possession of her office. Despite my request, her office produced emails involving only Supreme Court justices and limited to a period from 2008 to May 2012.

Kane has now asserted that the most recent set of emails released concerning Justice Michael Eakin are "new" emails. She also claims that the "new" emails had been sent previously to the Judicial Conduct Board and to the Supreme Court's special counsel but were ignored. Those are extremely serious charges leveled by the chief law enforcement officer of Pennsylvania. The conduct board has issued a denial, and the court's special counsel has expressed the opinion that the new emails were never provided to him.

To allow the factual situation to be resolved, the Attorney General's Office and the Judicial Conduct Board should waive confidentiality and turn over any and all records relating to when, where, and how the emails were exchanged and exactly what was shared among Kane's office, the conduct board, and the special counsel. Eakin, whose emails are the focus of the present controversy, has waived confidentiality. So should the Attorney General's Office and the Judicial Conduct Board.

The public has a right to know whether there was negligence by the Attorney General's Office, the Conduct Board, or the special counsel in responding to the email controversy and investigating the facts. Did Kane withhold the Eakin emails as retaliation or leverage for any potential disciplinary action affecting her law license by the Supreme Court? According to a grand jury report, she has previously used her office to wage "war" on Philadelphia District Attorney Seth Williams and two former top-level prosecutors in her office. Even more ominous is the question of whether there was soft-pedaling in the review of Eakin's emails to protect a well-liked justice.

The Supreme Court has enlisted Joseph Del Sole, a former president judge of Superior Court, to get to the bottom of these issues. Hopefully he can. But questions have been raised already of a conflict of interest arising from Del Sole's previous representation of Kane in her effort to void the appointment of a special prosecutor to investigate grand jury evidence previously leaked in a separate matter. Also, Del Sole and Eakin served together as Superior Court judges. Any results of Del Sole's investigation are certain to be questioned because of this, along with the fact that he is the Supreme Court's special counsel.

Presently there is no statutory procedure in place for appointing an independent prosecutor to investigate a situation that involves a Supreme Court justice, the attorney general, and the Judicial Conduct Board. Most attorneys I know would tend to shy away from such a formidable task, but a nationally respected investigator and former prosecutor could be found. Ironically, the fact that the court can legally appoint a special prosecutor already has been decided by the Supreme Court in the case that led to criminal charges against Kane herself.

Ronald D. Castille is a former chief justice of Pennsylvania.